Determining ineligibility
2 A person ( “P”) is ineligible to be deprived of liberty by this Act ( “ineligible”) if—

(a) P falls within one of the cases set out in the second column of the following table, and

(b) the corresponding entry in the third column of the table —or the provision, or one of the provisions, referred

to in that entry — provides that he is ineligible.

Status of P

Determination of ineligibility

Case A

P is—

(a) subject to the hospital treatment regime, and

(b) detained in a hospital under that regime.

P is ineligible.

Case B

P is—

(a) subject to the hospital treatment regime, but

(b) not detained in a hospital under that regime.

See paragraphs 3 and 4.

Case C

P is subject to the community treatment regime.

See paragraphs 3 and 4.

Case D

P is subject to the guardianship regime.

See paragraphs 3 and 5.

Case E

P is—

(a) within the scope of the Mental Health Act, but
(b) not subject to any of the mental health regimes.

See paragraph 5.

Authorised course of action not in accordance with regime

3 (1) This paragraph applies in cases B, C and D in the table in paragraph 2.

(2) P is ineligible if the authorised course of action is not in accordance with a requirement which the relevant regime imposes.

(3) That includes any requirement as to where P is, or is not, to reside.

(4) The relevant regime is the mental health regime to which P is subject.

Treatment for mental disorder in a hospital

4 (1) This paragraph applies in cases B and C in the table in paragraph 2.

(2) P is ineligible if the relevant care or treatment consists in whole or in part of medical treatment for mental disorder in a hospital.

P objects to being a mental health patient etc

5 (1) This paragraph applies in cases D and E in the table in paragraph 2.

(2) P is ineligible if the following conditions are met.

(3) The first condition is that the relevant instrument authorises P to be a mental health patient.

(4) The second condition is that P objects—

(a) to being a mental health patient, or

(b) to being given some or all of the mental health treatment.

(5) The third condition is that a donee or deputy has not made a valid decision to consent to each matter to which P objects.

(6) In determining whether or not P objects to something, regard must be had to all the circumstances (so far as they are reasonably ascertainable), including the following—

(a) P's behaviour;

(b) P's wishes and feelings;

(c) P's views, beliefs and values.

(7) But regard is to be had to circumstances from the past only so far as it is still appropriate to have regard to them.

Part 2

Interpretation

Application

6 This Part applies for the purposes of this Schedule.

Mental health regimes

7 The mental health regimes are—

(a) the hospital treatment regime,

(b) the community treatment regime, and

(c) the guardianship regime.

Hospital treatment regime

8 (1) P is subject to the hospital treatment regime if he is subject to—

(a) a hospital treatment obligation under the relevant enactment, or

(b) an obligation under another England and Wales enactment which has the same effect as a hospital treatment obligation.

(2) But where P is subject to any such obligation, he is to be regarded as not subject to the hospital treatment regime during any period when he is subject to the community treatment regime.

(3) A hospital treatment obligation is an application, order or direction of a kind listed in the first column of the following table.

(4) In relation to a hospital treatment obligation, the relevant enactment is the enactment in the Mental Health Act which is referred to in the corresponding entry in the second column of the following table.

Hospital treatment obligation

Relevant enactment

Application for admission for assessment

Section 2

Application for admission for assessment

Section 4

Application for admission for treatment

Section 3

Order for remand to hospital

Section 35

Order for remand to hospital

Section 36

Hospital order

Section 37

Interim hospital order

Section 38

Order for detention in hospital

Section 44

Hospital direction

Section 45A

Transfer direction

Section 47

Transfer direction

Section 48

Hospital order

Section 51

Community treatment regime

9 P is subject to the community treatment regime if he is subject to—

(a) a community treatment order under section 17A of the Mental Health Act, or

(b) an obligation under another England and Wales enactment which has the same effect as a community treatment order.

Guardianship regime

10 P is subject to the guardianship regime if he is subject to—

(a) a guardianship application under section 7 of the Mental Health Act,

(b) a guardianship order under section 37 of the Mental Health Act, or

(c) an obligation under another England and Wales enactment which has the same effect as a guardianship application or guardianship order.

England and Wales enactments

11 (1) An England and Wales enactment is an enactment which extends to England and Wales (whether or not it also extends elsewhere).

(2) It does not matter if the enactment is in the Mental Health Act or not.

P within scope of Mental Health Act

12 (1) P is within the scope of the Mental Health Act if—

(a) an application in respect of P could be made under section 2 or 3 of the Mental Health Act, and

(b) P could be detained in a hospital in pursuance of such an application, were one made.

(2) The following provisions of this paragraph apply when determining whether an application in respect of P could be made under section 2 or 3 of the Mental Health Act.

(3) If the grounds in section 2(2) of the Mental Health Act are met in P's case, it is to be assumed that the recommendations referred to in section 2(3) of that Act have been given.

(4) If the grounds in section 3(2) of the Mental Health Act are met in P's case, it is to be assumed that the recommendations referred to in section 3(3) of that Act have been given.

(5) In determining whether the ground in section 3(2)(c) of the Mental Health Act is met in P's case, it is to be assumed that the treatment referred to in section 3(2)(c) cannot be provided under this Act.